Originally Posted By: gbeaumont
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|High Court Lets Ruling Stand:
No Copyright for Building Codes
If code is law, it belongs to the public,
says Justice Department brief
In a legal blow to code-writing organizations, the United States Supreme Court has left in force an appeals court ruling that says citizens are free to publish model codes on the Internet whenever a state or municipality has adopted the code as law.
In the 1998 case of Veeck v. SBCCI, Texas resident Peter Veeck asked a federal court for protection after the Southern Building Code Congress International (SBCCI) threatened to sue him for copyright infringement. Veeck had posted the Standard Building Code (SBC) on his website, describing it as the building code of Savoy, Texas, a town in his area that used the SBC as local code. (SBCCI is now part of the International Code Council and the SBC has been absorbed into the International Building Code.)
Veeck lost his case at trial but won on appeal. The Fifth Circuit Court of Appeals upheld his code language online. Precedents that place legislative acts and judicial opinions in the public domain, the court reasoned, should apply to codes, too. When codes are adopted and enforced by governments, said the justices, "they become to that extent 'the law' of the governmental entities and may be reproduced or distributed as 'the law' of those jurisdictions." Laws are not subject to copyright, the court pointed out: "Public ownership of the law means that 'the law' is in the 'public domain' for whatever use the citizens choose to make of it."
SBCCI then took its copyright bid to the U.S. Supreme Court. But the high court, on the advice of United States Solicitor General Theodore Olson, refused the case without comment,
0lson's advisory brief, produced at the Supreme Court's order, endorsed the lower court's opinion. Olson wrote: "A comprehensive code specifically created for enactment into law ... may be copied by interested members of the public."
Consistent precedent. In recommending that the Supreme Court let the matter lie, Olson argued that the Veeck ruling is consistent with the only other appeals court decision that directly applies: the 1980 rejection by the First Circuit Court of an effort by Building Officials and Code Administrators (BOCA) to stop a private company from reprinting and selling copies of the Massachusetts code, which apart from a few amendments replicates the BOCA National Building Code. The judge in that case wrote that "the citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process."
Speculative harm. Olson was skeptical about the code organization's claims that the process of code creation and maintenance would be financially impaired by the loss of copyright protection. Those fears are "highly speculative," said Olson: "Professionals in the fields affected may have ample incentive to continue to buy the 'official' sets of standards notwithstanding the potential availability of other, unofficial editions, Even if profits from sales of copyrighted materials were reduced, professionals in the field and others may have many reasons to ensure that standards and codes remain available,"
What next? The Fifth Circuit's decision applies directly only in its own jurisdiction (Texas, Louisiana, and Mississippi), In other regions, the ruling has not been embraced so far: Florida and North Carolina make building codes available online but with copyright language attached. Michigan's state website claims copy- right protection for all the state legislature's published acts and tells citizens to buy copies of the code from the ICC, Meanwhile, code and standards organizations say they may continue to litigate for any perceived infringement and may ask Congress to enact legislation supporting their ownership of code language.
So how long will it be before all codes are available in the public domain ans are available as searchable on-line resourses. free of charge ??